Ketua Pengarah Hasil Dalam Negeri v 1. ) Suruhanjaya Syarikat Malaysia (SSM) (WA-22NCC-71-02/2021)

1.

ABD HALIM BIN HUSIN (NRIC No.: 710529-04-5089)

ABDULLAH BIN YUSUP (NRIC No.: 600102-04-5007)

SIM SEE KIONG (NRIC No.: 590707-08-5187)

NORIDAH BT MD SAID (No. K/P: 640404-01-5926)

NG LIANG KHIANG (No. K/P: 501024-01-5289) … DEFENDANTS GROUNDS OF JUDGMENT Introduction [1] The Plaintiff initially filed an Originating Summons under s. 535(1) of the Companies Act 2016 (‘CA 2016’) on 17 May 2018 for a declaration that the dissolution of Mahabuilders Sdn Bhd (interchangeably, “Mahabuilders” or “the company”) was void. The Plaintiff intended to impose additional income tax on the company for the years of assessment 2012 and 2013. [2] The 2nd Defendant being the liquidator of the company, successfully applied to convert the Originating Summons into a writ action on 8.8.2018. He then filed an application pursuant to O 14A and O 33 r 2 of the Rules of Court 2012 for the determination of a question of law: “Whether the Court has the jurisdiction under section 535(1) of the Companies Act 2016 to grant an order declaring the dissolution of a company void after the expiration of the two year period from the date of the company’s dissolution as prescribed within section 535(1) itself?” [3] The question of law was determined in the negative i.e., in favour of the 2nd Defendant. The Court of Appeal on 27.08.2020, affirmed the decision of the High Court. Dissatisfied with the decision of the Court of Appeal, the Plaintiff sought leave and was on 22.06.2020 granted leave to appeal to the Federal Court. On 08.02.2021, the Federal Court remitted the matter back to the High Court for full trial without determining the question of law. [4] The 3rd to 5th Defendants as directors at the material time of the years of assessment 2012 and 2013 or at the time the company was dissolved were added as parties after they successfully applied to and were allowed to intervene in this proceeding. [5] After a full trial lasting 10 days conducted virtually online by using the Zoom video conferencing platform, where the Plaintiff called 11 witnesses whilst the Defendants called 6 witnesses, I had on 21.3.2023 dismissed the Plaintiff’ action with no order as to costs. This judgment contains the reasons for my decision. Background [6] On 10.07.2013, for year of assessment (“YA”) 2012, it was alleged that Mahabuilders submitted two tax return forms to the Plaintiff as follows: a) A tax return form for year 2012 together with a Cover Letter based on Mahabuilders’ Audited Financial Report (“Higher Tax Return form for 2012”); and b) An amended tax return form for year 2012 calculated based on Mahabuilders’ nature of business (“Amended Tax Return form for 2012”). [7] On 23.04.2014, for YA 2013, it was also alleged Mahabuilders submitted two tax return forms to the Plaintiff as follows: a) A tax return form for year 2013 together with a Cover Letter based on Mahabuilders’ Audited Financial Report (“Higher Tax Return form for 2013”); and b) An amended tax return form for year 2013 calculated based on Mahabuilders’ nature of business (“Amended Tax Return form for 2013”). [8] Vide letters dated 05.08.2013 and 02.05.2014 (‘the Approval letters”), the Plaintiff confirmed the tax payable by Mahabuilders for YA 2012 and 2013 will be based on the amended tax return forms. [9] Mahabuilders then paid its taxes based on the amended tax return forms. [10] On 1.3.2016, the directors of Mahabuilders commenced its voluntary winding up by making a written declaration of solvency under section 257 of the Companies Act 1965 (‘the CA 1965’). The 2nd Defendant was appointed as liquidator to carry out the winding up process. [11] By its Request Letter dated 15.3.2016, the 2nd Defendant as liquidator, notified the Plaintiff about the voluntary winding up and requested the Plaintiff for a Tax Clearance Letter. The Plaintiff then issued the Tax Clearance Letter and the Tax Position Letter, both dated 5.4.2016, confirming that there was no outstanding tax liability and to proceed with the voluntary winding up. [12] On 09.03.2016, an advertisement was placed in the Malay Mail newspaper giving notice of the winding up process. On 20.04.2016, the notice of Mahabuilders’ Final Meeting was also advertised in the Malay Mail newspaper. [13] On 20.05.2016, a final meeting of Mahabuilders was held. [14] The 2nd Defendant informed vide its Final Letter dated 25.05.2016 to the Plaintiff that the winding up process was completed and requested for Mahabuilders’ file to be closed. [15] Mahabuilders lodged a return of the holding of the final meeting with the Registrar of Companies. On 20.08.2016, Mahabuilders was officially dissolved in accordance with section 272(5) CA 1965. [16] On 17.5.2018, the Plaintiff filed the OS which was converted to a Writ of Summons on 08.08.2018. The Plaintiff’s case [17] It is the Plaintiff’s pleaded case that on 5.1.2016, it conducted tax investigations on Mahabuilders for YA 2012 to 2014. During the investigation, the Plaintiff found that Mahabuilders had understated its tax liabilities for YAs 2012 and 2013. The Plaintiff then raised the Notices of Assessment for YAs 2012 and 2013 against Mahabuilders on 20.12.2017, addressed to the 2nd Defendant. On 15.5.2018, the Plaintiff withdrew the Notices of Assessments as Mahabuilders was found to be dissolved on 20.8.2016. 2 days later, the Plaintiff filed action and sought for the following orders:

17.1 A declaration under section 535(1) CA 2016 that Mahabuilders’ dissolution on 20.8.2016 is illegal and void;

17.2 That the status of Mahabuilders in the 1st Defendant’s company registration record be restored from ‘Dissolved’ to its original status of ‘Existing’ or ‘Wound up’; and

17.3 That the 2nd Defendant be restored to his status as liquidator for Mahabuilders to carry out the responsibilities under the CA 2016 as though Mahabuilders had never been dissolved and subsequently, the Plaintiff can carry out its powers and responsibilities as provided under the Income Tax Act 1967 (“ITA 1967)”. [18] The Plaintiff contended that:

18.1 The Plaintiff did not receive the Cover Letters and the Original Higher Tax Return forms;

18.2 The Plaintiff did not issue the IRB Approval Letters;

18.3 The Plaintiff did not receive the Liquidator’ s Request Letter and the Liquidator’ s Final Letter; and

18.4 The Plaintiff did not issue the Tax Clearance Letter and the Tax Position Letter. The issues [19] The parties’ agreed issues to be tried in Enclosures 166 and 174 are as follows: Issues to be tried between the Plaintiff and the 2nd Defendant till the 5th Defendant “1.1 Whether the documents listed in paragraph 1.3.1 to 1.3.14 are genuinely prepared and issued by the Plaintiff

1.2 Whether the 2nd Defendant till the 5th Defendant were in law and in fact entitled to rely on the following documents

1.3 Documents in dispute

1.3.1 Inland Revenue Board of Malaysia Cheras Branch’s letter titled “Pemberitahu Pembubaran Syarikat Mahabuilders Sdn. Bhd.” dated 05.04.2016.

1.3.2 Inland Revenue Board of Malaysia Cheras Branch’s letter titled “Kedudukan Cukai Nama Syarikat: Mahabuilders Sdn. Bhd.” dated 05.04.2016.

1.3.3 Inland Revenue Board of Malaysia Assessing Branch’s letter titled “Rayuan Untuk Pindaan Cukai Tahun 2012” dated 05.08.2013.

1.3.4 Inland Revenue Board of Malaysia Assessing Branch’s letter titled “Rayuan Untuk Pindaan Cukai Tahun 2013” dated 02.05.2014.

1.3.5 Inland Revenue Board of Malaysia Johor Bahru Branch’s letter titled “Kedudukan Cukai” dated 20.03.2014.

1.3.6 Inland Revenue Board of Malaysia Cheras Branch’s letter titled “Surat Penyelesaian Cukai” dated 16.04.2015.

1.3.7 Inland Revenue Board of Malaysia Jabatan Cukai Korporat dated 20.04.2015.

1.3.8 Pemberitahuan Cukai Pendapatan Yang Dinaikkan dibawah Sub-Seksyen 103A(4) & (5)/(6) & (7)/(8) & (9) Akta Cukai Pendapatan 1967 dated 20.08.2013.

1.3.9 A copy of ledger details for Mahabuilders Sdn. Bhd. for year 2010.

1.3.10 A copy of ledger details for Mahabuilders Sdn Bhd for year 2011.

1.3.11 A copy of ledger details for Mahabuilders Sdn Bhd for year 2012.

1.3.12 A copy of ledger details for Mahabuilders Sdn Bhd for year 2013.

1.3.13 A copy of ledger details for Mahabuilders Sdn Bhd for year 2014.

1.3.14 A copy of ledger details for Mahabuilders Sdn Bhd for year 2015.

Whether in law and/or in facts this court should grant orders and declarations sought by the Plaintiff in this action:

2.1 A declaration under Section 535(1) of the Companies Act 2016 that the dissolution the company Mahabuilders Sdn. Bhd. (Company No.: 101505-A) (“Mahabuilders”) on 20.08.2016, that is after the expiration of 3 months from the date of filing of Form 69 on 20.05.2016 pursuant to Section 459(5) of the Companies Act 2016 to be invalid and void;

2.2 That the status of the company Mahabuilders in the 1st Defendant’s company registration record be restored to original which is from

2.3 That the 2nd Defendant be restored to his status as liquidator of the company Mahabuilders to carry out the responsibilities under the Companies Act 2016 as though the company Mahabuilders had never been dissolved and subsequently the Plaintiff can carry out its power and responsibilities as provided under the Income Tax Act 1967.” 3rd Defendant to 5th Defendant’s Issues to be Tried “1. Whether the Court has the jurisdiction under Section 535(1) of the Companies Act 2016 to grant an order declaring the dissolution of a company void after the expiration of the two-year period from the date of the company’s dissolution as prescribed within Section 535(1) itself?

Whether the notices and/or documents from the Plaintiff to Mahabuilders were received in the ordinary course of business?

Whether there is any prejudice to the 3rd Defendant to the 5th Defendant and/or other former directors of Mahabuilders if Mahabuilders is restored to its original status?” [20] In summary, the issues are as follows:

20.1 Whether the 2nd to 5th Defendants were entitled to rely on the Plaintiff’s Tax Clearance Letter, Tax Position Letter and IRB’s Approval Letters for YA 2012 and 2013 (collectively “the

20.2 Whether in law/fact this Court should grant the orders and declarations sought by the Plaintiff;

20.3 Whether the Court has jurisdiction under section 535(1) CA 2016 to grant the prayers to void the dissolution of Mahabuilders after the expiration of 2 years from the date of Mahabuilder’s dissolution? and

20.4 Whether there is any prejudice to the Defendants should the Plaintiff’s claim be allowed? Burden of proof [21] It is trite law that the Plaintiff, had both the “burden of proof” to make out a prima facie case as well as the initial onus of proof to adduce evidence to prove its claim. The onus of proof would only shift to the Defendants if the Plaintiff had made out a prima facie case. See for e.g., the Federal Court decision in Letchumanan Chettiar Alagappan @ L Allagappan (as executor to SL Alameloo Achi alias Sona Lena Alamelo Acho, deceased) & Anor v Secure Plantation Sdn Bhd [2017] 4 MLJ 697; [2017] 5 CLJ 418 where Jeffrey Tan FCJ held that: “[56] ... a plaintiff has both the burden of proof as well as the initial onus of proof ... [57] The rule is that ‘the onus of proof of any particular fact lies on the party who alleges it, not on him who denies it; et inoumbit probation qui decit, non qui negat, Actori incibit probation ... The plaintiff is bound in the first instance, to show a prima facie case, and if he leaves it imperfect the court will not assist him.” [22] In the case of Dr Shanmuganathan v Periasamy s/o Sithambaram Pillai [1997] 3 MLJ 61, the Federal Court held: “Sections 101, 102, 103 and 106 of the Evidence Act 1950 deal with the burden of proof. Under s 101, it is provided that whoever desires any court to give judgment as to any legal right or liability, dependent on the existence of facts which he asserts, must prove that those facts exist. Under s 102 the burden of proof lies on that person who would fail if no evidence at all were given on either side. Under s 103, the burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. Under s 106, when any fact is especially within the knowledge of any person the burden of proving that fact is upon him.” [23] Forgery being a type of fraud (Letchumanan Chettiar Alagappan supra and Md Hilmi bin Md Noor & Anor (suing in their personal capacities and as administrators for the deceased, Md Noor bin Mohamed) v Azman bin Ahmad & Ors [2016] 6 MLJ 205 at [38]), the Federal Court in Letchumanan Chettiar Alagappan supra at [34] and [35] made clear that the standard of proof for forgery is on a balance of probabilities. This standard of proof accords with the decision in Sinnaiyah & Sons Sdn Bhd v Damai Setia Sdn Bhd [2015] 5 MLJ 1 where the Federal Court has pronounced the position of the law on the standard of proof on fraud in civil cases is that on balance of probabilities at para 49 of the judgment: “… that at law there are only two standards of proof. namely, beyond reasonable doubt for criminal cases “while it is on the balance of probabilities for civil cases. As such even if fraud is the subject in a civil claim the standard of proof is on the balance of probabilities. There is no third standard. ….” Analysis and findings [24] The power of the Court to declare the dissolution of a company void is governed by section 535(1) CA 2016 which reads: “Where a company has been dissolved, the Court may, at any time within two years after the date of the dissolution, on an application of the liquidator of the company or of any other person who appears to the Court to be interested, make an order upon such terms as the Court thinks fit declaring the dissolution to have been void, and such proceedings may be taken as might have been taken if the company had not been dissolved.” (Emphasis added) [25] I turn to deal with the issues. Whether the 2nd to 5th Defendants were entitled to rely on the Disputed Letters? [26] Apropos to the processing of physical tax returns, the different stages based on the Plaintiff’s evidence are:

26.1 Stage 1: Counter staff will stamp acknowledgment chop on the forms received and put them in baskets, which will be sent to Unit Mel.

26.2 Stage 2: Unit Mel will attach barcode to the forms, and scan the barcode into Record Management System (RMS), which will track the movement of the forms.

26.3 Stage 3: The forms reach Unit Kawal Terima and will go through batching processes. Unit Kawal Terima will also prepare lists of all the forms (“Lists”).

26.4 Stage 4: The forms reach Unit Kemasukan Data who will key in the information on the forms into Sistem Kemasukan Data.

26.5 Stage 5: The forms and the Lists reach Unit Semakan Data. Ketua Unit will distribute stacks of the forms and their corresponding Lists to officers such as PW3 and PW4, who will (a) verify the data keyed in into Sistem Kemasukan Data against the information on the forms, (b) upload these data into Sistem Kemasukan Data and (c) stamp their respective chops on the respective forms.

26.6 Stage 6: The Plaintiff’s Information Technology personnel will then upload the data within Sistem Kemasukan Data into the Plaintiff’s main system, namely Sistem Taksir Sendiri (STS).

26.7 Stage 7: The forms will then be scanned and uploaded by Unit Imbasan into Sistem Pengurusan Dokumen (DMS). [27] DW3, DW4 and DW6 testified that Mahabuilders has submitted two

tax return forms for YAs 2012 and 2013 i.e., Higher Tax Return form for YA 2012 whereby the tax liability was RM30,885,915.25, Amended Tax Return form for YA 2012 whereby the tax liability was lower at RM2,503,784.00, Higher Tax Return form for YA 2013 whereby the tax liability was RM46,784,297.75 and Amended Tax Return form for YA 2013 whereby the tax liability was RM2,315,465.00. [28] Due to Mahabuilders’ business as a property developer, Mahabuilders was advised by a consultant that the manner in which property developers are taxed is slightly different from ordinary companies – with tax computation depending on the revenue and the time for complete construction in line with the Plaintiff’s Public Ruling No. 1 of 2009. This legal position is not disputed by the Plaintiff’s witness: Page 43 of the NOP5 (Encl.220) of Trial on 29.06.2022 En Mahfuz, you have been working with IRB for some years? MAHFUZ: Since 2003. 2003, and by reason of the practice ruling, 1 of 19, 2009 relating to property development, the manner in which property developers are taxed is slightly different from ordinary companies. According to Public Ruling 1 of 19, 2009, property developers are taxed differently depending on the revenue and the time for complete construction, you confirm that? Yes? MAHFUZ: Ya.” [29] That there is nothing sinister about submitting 2 sets of tax returns for a particular financial year was in fact acknowledged by PW5 during cross examination. She testified that when two tax return forms are submitted to the Plaintiff, the officer handling the forms will make a decision as to which of the form will be uploaded in the system: Pages 65-67 of the NOP3 (Encl.218) of Trial on 27.04.2022 Maybe, Puan, you take away, yes, move it, yes, that’s fine. Puan, if taxpayer not so sure what is the taxable liability, tax liability, yes, they submit two forms for one year of assessment, two different forms. One smaller, one bigger, or one, different. Not identical. One larger tax, the other lower tax, because they’re not sure. They submit. Then, your department makes the decision because you, in Puan Rohamah say your department, you determine the assessment. You help branches. You make a determination, and you enter what you think at that time is the right thing. Maybe wrong, but at that time, the officer, not you, an officer decides and enters only one. Is that right? ZABIDAH: Pengemukaan BNCP. Two forms are given. ZABIDAH: Jika berlaku keadaan di mana lebih daripada satu BNCP yang diterima, pegawai akan proses yang mana diterima dahulu, yang mana yang, which means yang mana yang sampai dahulu. Pegawai tidak tahu yang the second form, tapi the first form dia akan proses dahulu. Ok. ZABIDAH: Bila kita, bila kita, ap ani, setiap BNCP dia akan kita paste barcode. Barcode adalah unik bagi setiap set BNCP. And then, barcode ni kita akan key-in input dalam sistem, and then kita akan, pegawai akan input maklumat berkenaan dengan pembayar cukai. Then, let’s say, and then the next day, second form come in. Bila, apa, pegawai input the same number pada, dalam sistem, the first form akan – Sistem reject? ZABIDAH: Yes, because the first form sudah key-in, and then, apa, sistem akan mengatakan the second form tu adalah duplicate. Duplicate or mistake? Wrong, it will reject? ZABIDAH: It’s not wrong. Sistem akan kata “duplicate return form”. Ok. ZABIDAH: So, dalam sistem, yang berjalan adalah the first form. Borang yang pertama saja yang kita akan proses. The second form kita tak akan proses. Tak proses. ZABIDAH: Tapi the second form akan dihantar kepada pegawai untuk membuat semakan. Membuat semakan. Jika data berlainan, second form akan dihantar ke cawangan because kita menganggap yang tu adalah pindaan. So, second form kita hantar kepada cawangan untuk cawangan buat semakan selanjutnya. Ok. Puan, if both the forms are given on the same time, yes? If one form is given today, on, say, Monday, another form is given Wednesday, only Form 1, Monday form will be included in the sistem? Wednesday form will be not included in the system? Yes? You have explained. But if both the forms are given at the same time, my instructions, Puan, is for the same year of assessment, year 2012, year 2013, year 2014, year 2015, doesn’t matter. Given for the same year, officer then makes a decision which to include. Because system cannot have two forms. Yes? ZABIDAH: Ya.” [30] In this case, the Plaintiff acknowledged receipt of the 2 sets each of Tax returns for YAs 2012 and 2013 by the use of its rubber stamp/chop as follows: i) For year 2012 - pages 161 of CBD 1 and 339 of CBD 3. ii) For year 2013 - pages 177 of CBD 1 and 359 of CBD 3. [31] The Plaintiff contended however that it had not received the Cover Letters and the Original Higher Return for both YAs 2012 and 2013. In this regard, PW10 in WSPW10, Q&A 8 testified of the existence of a “SOP” document which allegedly regulates the Plaintiff’s acknowledgment chops. Evidence was lead through PW9 and PW10 that (i) every day, the Counter Supervisor would collect the chops from a steel box and allocate it to the counter staff randomly, where the chops held by each counter staff are different; at the end of the day, the chops used would be kept separated so that they will not be used the next day; each chop should contain (a) receipt date, (b) department name, (c) the phrase “accept without prejudice” and (d) serial number. [32] I find this Plaintiff’s contention do not hold water at all:

32.1 Firstly, the “SOP” document was not produced in court which invites an adverse inference be drawn against the Plaintiff;

32.2 Second, PW9 was unsure when the alleged rule that the same chop will not be used on the next day was implemented: Page 112 of the NOP4 (Encl.219) of Trial on 28.04.2022 “DPN No. You must, you’re on oath, on the Ramadan. You must be careful when you answer. Ya? If you are not sure, please state not sure, if you are sure, you must be very firm. Ya? So, when did system start you are not sure? ZUL AZRI Not sure.”

32.3 Third, that the same chop will not be used on the next day is also dispelled by looking at BOD5 (Encl 186), Part A, pg. and pg. 68 which plainly show the same chop being used on consecutive days on 29th and 20th July 2005;

32.4 Fourth, PW9 testified that the stamp at pages 339 and 359 CBD3 are similar to the ones used by the Plaintiff. Pages 57-58 of the NOP3 (Encl.218) for Trial fixed on 27.04.2022 Yes. Pn Zabidah, you have looked at all of these. Would you confirm to My Lady that this looks similar, I’m not saying the same, similar to the rubber stamps used by IRB? This looks similar to the rubber stamp used by IRB. We never know whether it’s true or not, but it’s similar. Yes. And this would be for all the four pages I referred to, yes? Remember I referred you to page 339, 359, 360, all the… 359, look at 359, 360. These are all, yes, it’s similar? Yes. Pn Zabidah, you’ve got to answer loudly so that My Lady, yes. So, you said yes?

32.5 Fifth, and damaging to the Plaintiff’s assertion of non receipt, PW10 admitted that based on her examination of the acknowledgment chops on the Cover Letters, the Original Higher Return (YA 2013), the Liquidator’s Request Letter and the Liquidator’s Final Letter, these chops bear all the requisite features and are genuine: NOP5 (Encl 220), pg.18-20: : 339. Puan boleh nampak cop ada perkataan “terima tanpa prasangka?” … : Jadi, ini cop yang mempunyai semua ciri-ciri yang Puan katakan? : Betul. : Jadi, Puan, cop ini adalah cop LHDN. Betul ke tidak? : Berdasarkan ciri-ciri, ya, betul. : Jadi, dokumen ini diterima oleh pihak LHDN? : Kalau berdasarkan ciri-ciri di dalam cop ini, betul. ……………. : Kalau saya, Puan, saya rujuk kepada muka surat 359, cop tersebut ada perkataan “terima tanpa prasangka?” .......... : Jadi, cop ini juga mempunyai kesemua ciri yang Puan katakan. Betul ke tidak? : Betul. : Jadi, berdasarkan cop ini, dokumen ini sememangnya telah diterima oleh pihak LHDN. Betul ke tidak? : Kalau berdasarkan ciri, ini adalah cop LHDNM. : Manakala, dan pihak orang awam, taxpayer, tidak, berdasarkan cop ini, akan menerima cop ini sebagai cop tulen pihak LHDN. Betul ke tidak? : Orang awam, dia akan anggap ini adalah cop LHDNM. ……………….. : Puan, kalau saya rujuk kepada muka surat 360, cop ini juga mempunyai kesemua ciri yang Puan katakan tadi. Betul ke tidak? : Betul. : Jadi, berdasarkan cop ini, dokumen ini sememangnya telah diterima oleh pihak LHDN. Betul ke tidak? : Berdasarkan ciri, ini merupakan cop LHDNM.

32.6 Sixth, PW9 also testified that the Plaintiff has a record which would identify the chop-holders who stamped the acknowledgment chops on the Cover Letters, the Original Higher Return (YA 2013), the Liquidator’s Request Letter and the Liquidator’s Final Letter: NOP4 (Encl.219), pg.119-120. This record was not produced; neither were any of the relevant chop-holders whose evidence would be material called to testify which yet again invite an adverse inference to be drawn against the Plaintiff.

32.7 I had preferred the Defendants’ direct evidence to that of PW3 and PW4’s hearsay evidence. These 2 witnesses claimed that Mahabuilders only submitted the Amended Lower Returns and not the Original Higher Tax Returns, on the basis that the latter was not reflected in RMS, the Lists and the forms handed to them.From their evidence-in-chief and from PW4’s admission when cross-examined: NOP3, enc. 218 pg.12, 14 & 17, I find that these 2 witnesses: (i) were basically repeating what they saw on the RMS and the Lists, of which they were not the makers but they assumed the contents to be true, (ii) as is clear from the process set out at paragraph 32 of this judgment, the forms would not be reflected contemporaneously in RMS until Stage 2, the Lists were not prepared contemporaneously until Stage 3 and Ketua Unit Semakan Data would not get their hands on the Lists and the forms until Stage 5 BUT PW3 and PW4 were only involved in Stage 5 and have no personal knowledge of what had happened in Stages 1 to 4 and 6 to 7: NOP2 (Encl 217), pg.76, 77, 78 and 81, and NOP3(Encl. 218), pg. 12 and 13;

32.8 The Lists were still kept by the Plaintiff as admitted by PW3, yet they were not produced and this invites an adverse inference: NOP2(Enc. 217), pg.77;

32.9 Taking into account that that PW5 did testify that the RMS would invariably include only 1 form for a particular YA even if 2 forms were submitted, because the system cannot have 2 forms - NOP3 (Encl.218), pg.67 and that forms do go undetected - WSPW2 A Q&A 11(5), and the fact that PW3 and PW4 would not know what could have happened to forms which are not accounted for in the system: NOP2(Encl.217) pg.84 -85, I accept the Defendants’ assertion that the likely explanation of why the Original Higher Returns were not detected by PW3 and PW4 is because (a) either that the Original Higher Returns were misplaced at Stage 1 or (b) that the officers at Stage 2 misplaced the Original Higher Returns, or if not, did not attach the barcodes onto them, or if attached, did not scan the barcodes into RMS;

32.10 Crucially, and most damaging, PW10 confirmed that it was not her evidence that any of the acknowledgment chops were falsified or forged and hence no police report was made: NOP5 (Encl 220), pg. 27: “HT : Tiada cop yang dipalsukan, ya? Bukan keterangan Puan? SHARIFAH : Bukan keterangan saya. ... : : Dan bukan keterangan Puan bahawa salah satu dipalsukan? Bukan keterangan Puan? SHARIFAH : Sekali lagi? Saya tak faham. : Ia bukan keterangan Puan bahawa salah satu cop dari muka surat 177 dan 359, dipalsukan? Bukan keterangan Puan bahawa mereka dipalsukan? SHARIFAH : Palsu bukan keterangan saya. : Hakikatnya, tiada police report yang telah dibuat bahawa salah satu cop telah dipalsukan? SHARIFAH : Tidak. [33] Thus, the evidence weighed as a whole, it can be concluded that the Plaintiff was indeed in possession of the two tax return forms namely the Higher Tax Return Form and Amended Tax Return Form for YAs 2012 and 2013, the Liquidator’s Request Letter and the Liquidator’s Final Letter. In fact, the Plaintiff made no submissions to dispute that these documents were indeed submitted to and received by it, and that the acknowledgment chops on these documents were anything but genuine. Forged letters [34] This Court takes note that the Plaintiff has agreed at paragraph 10 of its submissions that the documents listed at paragraph 1.3.9 to 1.3.14 of Enclosure 166 being Mahabuilders’ ledger for the years 2010 to 2015 (which can be seen at pgs. 10 to 15 of Encl 167) (“Mahabuilders’ Ledger”) may be relied upon by the 2nd to 5th Defendants in law and in fact; thus, the veracity of the same is no longer in question. So too the letter dated 20.3.2015 from the Plaintiff’s Johor Bahru branch to Mahabuilders titled ‘Kedudukan Cukai’ is now an undisputed letter (“Undisputed 2015 Tax Position Letter”). The contents of this letter informed there as at current date, no tax is outstanding by Mahabuilders. [35] The significance of this concession in paragraph 10 of the Plaintiff’s submission cannot be underscored. Based on the evidence, this Court agrees with and accepts the 2nd Defendant’s submission that:

35.1 Mahabuilders’ ledger for the year 2012 at pg. 12 enc. shows that:

35.1.1 On 2.9.2013, Mahabuilders had settled the lower tax liability of RM2,503,784.00 as evidenced by the receipt at pg. 4 Enc 167. This amount is consistent with the Amended Lower Return for YA 2012;

35.1.2 On 2.3.2015, Mahabuilders had settled the balance of tax payable of RM262,897.32 evidenced by the cheque and receipt at pg. 5 and 6 of enc. 167, in accordance with the Plaintiff’s demands against Mahabuilders based on the tax confirmed in the

35.1.3 On 2.3.2015, Mahabuilders had settled the balance of tax payable of RM262,897.32 evidenced by the cheque and receipt at pg. 5 and 6 of enc. 167, in accordance with the Plaintiff’s demands against Mahabuilders based on the tax confirmed in the

35.1.4 There was no outstanding tax payable to the Plaintiff for YA 2012, consistent with the Tax Clearance Letter and Tax Position Letter.

35.2 So too Mahabuilders’ ledger for YA 2013 at pg. 13 Enc. show:

35.2.1 On 9.5.2014, Mahabuilders had settled the lower tax liability of RM2,263,112.00 evidenced by the receipt at pg. 9 Enc 167, this amount is consistent with the

35.2.2 On 14.11.2014, Mahabuilders had settled the balance of tax payable of RM60,467.71, in accordance with the Plaintiff’s demand against Mahabuilders based on the tax sums confirmed in the IRB’s Approval Letter for YA 2013; and

35.2.3 There was no outstanding tax payable to the Plaintiff for YA 2013, consistent with the Tax Clearance Letter and Tax Position Letter. [36] The information in the 2012 and 2013 Mahabuilders ledgers were entirely consistent with the matters disclosed and recorded in the IRB’s Approval Letter (YA 2012) and the IRB’s Approval Letter (YA 2013), the Tax Clearance Letter and the Tax Position Letter. [37] Even so, the Plaintiff contended that the Defendants were not entitled to rely on the Disputed IRB’s Letters because they are forged documents. The basis for the Plaintiff’s claim of forgery as appearing in its submissions are as follows:

37.1 Tax Clearance Letter and the Tax Position Letter:

37.1.1 The person who signed the Tax Clearance Letter, one En Zainuddin bin Jalaludin was not registered as an officer of the Plaintiff’s Cheras branch;

37.1.2 Based on the Tax Clearance Letter, En Zainuddin bin Jalaludin was an officer of “Bahagian Jabatan Pentadbiran”, but “except a small unit known as Unit Pentadbiran”, there was no “Bahagian Jabatan Pentadbiran” in the Cheras branch;

37.1.3 Both the Tax Clearance Letter and the Tax Position Letter were forged because Mahabuilders was not registered as a taxpayer at the Cheras branch; and thus “no action can be made relating to”

37.1.4 The format of the Tax Clearance Letter and the Tax Position Letter were different from the “specific format” that was “generated by the computer” and which “cannot be edited in any way”; and

37.1.5 The Cheras branch did not receive the Liquidator’s Request Letter and the Liquidator’s Final Letter.

37.2 The IRB’s Approval Letters (YA 2012 & YA 2013), were “glaringly dissimilar from the standard letterhead used by the Plaintiff in its official letter”; also, the attendance system and leave record show that PW9 and En Yusof who signed the letters were on leave on the respective dates stated on the letters, and it was not within the scope of the apparent issuer Jabatan Pusat Pemprosesan Maklumat (“JPPM”), PW 9 or En Yusof to issue such letters. [38] The Defendants on the other hand postulated:

38.1 the Plaintiff’s reliance on PW1 and PW6’s evidence to claim Zainuddin bin Jalaluddin who signed the Tax Clearance letter was never an officer in the Cheras branch is unreliable for the following reasons:

PW1 could not even remember how many officers there were in Cheras branch from 2012 to 2015 except to say there were about 200 officers (Page 38 of the NOP (Encl.223) of Trial on 25.04.2022); he had retired in 2020 whilst PW6 retired in 2019 and were testifying on matters that happened about 6 to 10 years ago;

(ii) PW1’s evidence that there was no such Zainuddin was based on what 3 officers from the desk unit, collection unit and administration unit in the Cheras branch told him based on a search at branch level (NOP (Encl.223), pg. 45-46 of Trial on 25.04.2022); but these officers were not called to testify and is clearly hearsay evidence, not to be given weight pursuant to section 60 of the Evidence Act 1950, neither were the branch search results produced;

(iii) the search done by Unit Pentadbiran at the branch level is incomplete and has limited probative value because branch-level officers do not have access to the Plaintiff’s comprehensive human resource database/system (“HR System”), in that branch-level access will not display information of officers who had left that particular branch: NOP2(Encl.217) pg. 24, PW2 who is the national human resource officer admitted that there were many officers by the name of Zainuddin but she was not asked by the Plaintiff to perform a search on Zainuddin bin Jalaluddin, NOP2(Encl.217), pg.28.

(iv) suppressing the search result at the branch level, and in not requesting PW2 to produce search result at the national level, attracts an adverse inference to be drawn against the Plaintiff.

38.2 As for the posit that there was no “Bahagian Jabatan Pentadbiran” in the Cheras branch which was stated in the Tax Clearance Letter, and there is only a “Unit Pentadbiran”, this does not, without more, prove that the Tax Clearance Letter was issued from a “non-existing department” as alleged by the Plaintiff as PW1 would also refer to that department loosely as “unit jabatan pentadbiran” (NOP1B (Encl 224), pg.14).

38.3 the postulation that Mahabuilders was not registered as tax payer at the Cheras branch but at the Johor Bahru branch and as such, the officers in the Cheras branch would not have access to Mahabuilders’ information on STS holds no water as:

PW7 testified under cross-examination that that there is an internal written regulation stipulating that an officer can only access the files under his branch but such internal written regulation was not produced before the Court. During cross-examination, PW6 admitted that he was not sure if officers more senior than him are similarly restricted from viewing files under the supervision of other branches (NOP4 (Encl 219), pg. 33);

(ii) PW1 as the former deputy director of the Cheras branch had admitted during cross-examination that there can be situation where officers of the Plaintiff could get the letterheads and issue the Tax Clearance Letter and the Tax Position Letter letters which would be beyond his control: Pages 47- 49 of the NOP (Encl.223) of Trial on 25.04.2022 You can remember this very clearly but you cannot remember the name of the three people whom you asked them to investigate whether letters at 335, 336 were issued? Kalau tengok surat ini, saya teringat, Yang Arif. Tapi kalau ingat nama yang saya buat semakan selepas beberapa tahun, saya tak akan ingat. Ok. You wouldn’t know whether some employee got the letterhead from Cheras and wrote this letter. You wouldn’t know. Di luar kawalan, Yang Arif. Di luar kawalan, beyond our control, Yang Arif. I suggest that these things happen beyond your control. Beyond your position but it happens. Maksud Tuan, apa yang berlaku? Yang saya tengok surat daripada Cawangan Johor Bahru melainkan yang berlaku di Cawangan Cheras tak ada, Yang Arif. Yes, look. What I’m saying is, if the letter has been issued from Cheras branch using the letterhead of Cheras branch, that’s beyond your control. MAHAT: Saya tak pasti, Tuan. No, you told My Lady that this letter, if it has been issued, it’s beyond your control. You remember, you just said it’s beyond control. MAHAT: Di luar kawalan. Kalau dinyatakan siasatan surat letterhead yang lain, saya tak tahulah. Yes, and if that happens, it’s beyond your control? MAHAT: Masih berlaku di Cheras atau di mana, Tuan? Kalau Cheras atau mana-manalah. MAHAT: Kalau cawangan-cawangan lain, saya tak tahu. Kalau Cheras, kalau dia buat itu beyond control? MAHAT: Yes, Tuan. Kita tak akan monitor semua orang. Yes. MAHAT: Pada setiap masa, Yang Arif. Yes. You confirm that is impossible to observe and control a department? Ya, Yang Arif. Betul.”

38.4 As regards the Plaintiff’s assertion that the format of the Tax Position Letter was different from the “specific format” that was “generated by the computer” and which “cannot be edited in any way”, the Defendants pointed out that:

the Plaintiff’s own letterheads in Part A and Part B (where authenticity is undisputed) are clearly different in many aspects i.e. font style (some use Times New Roman, some Arial/Calibri) and size, positioning of certain words including identation), gaps between the logo and the address, some the logo and address overlap each other, some state “Homepage LHDN”; some state ‘Laman Web’; some state “Portal Rasmi LHDN’’, some state “Portal Rasmi”; the placement of the colon symbol is also different; alignment for some are different, some are italicized, some not; some have particulars (like Ruj Tuan, Ruj Kami, Tarikh) left in blank, some of these particulars are handwritten; some particulars are partially typed and partially handwritten whilst some had particulars of the date stamped as can be seen in pages 217, 228, 229, 233, 234, 236, 239, 242, 244, 251 of CBD 1 and pages 262, 263, 264, 304, 305, 331, 332 of CBD 2; the letterheads at pages 304 and 305 even had a mixture of Times New Roman and Arial whilst the letter heads at pg. 262,263, 331 and 332 had the word “Malaysia” after the words “Lembaga Hasil Dalam Negeri”. These visible differences were addressed extensively at paragraph 56 of the 2nd Defendant’s submissions which I have examined and will not produce here to avoid a lengthy judgment;

(ii) the 2nd Defendant’s counsel further submitted that the Tax Position Letter’s format is consistent with the format of the Plaintiff’s Letter (Johor Bahru branch) dated 20.3.2015 titled ‘Kedudukan Cukai’ [pg. 18 CBD4], which the Plaintiff conceded in paragraph 10 of the Plaintiff’s Submission to be undisputed;

(iii) PW5 gave evidence that the only thing that is common about the Plaintiff’s letterhead is the logo, which is pre-printed by the National Printer. Other particulars were inserted by the Plaintiff’s officers and in this regard, PW2 admitted under cross-examination (NOP2 (Encl.217), pgs. 53 and 54) that the Plaintiff’s internal officers retain significant liberties to edit the Plaintiff’s letterheads;

(iv) PW6 confirmed during cross examination at trial that the general public would not have any knowledge pertaining to the Plaintiff’s letterhead – Pages 22-25 of NOP4 (Encl. 219) of Trial fixed on 28.04.2022;

PW7 too, during cross examination agreed that the members of the public would not know the standard format of the Plaintiff’s letters – NOP4 (Encl.219) pgs. 62- 63: Setuju. So, members of public may not know your standard format. SUZAINI: Setuju. Yes? Therefore, when you say that this is not format, but when En Halim receives this letter, he might not know that this is not your format. He receives this letter, he might not know, “hey, listen this is not format”, is that right? Be fair to him. Unless he knows, you are… You are there, you know the format. But En Halim is not in IRB. He sends a letter, he receives a reply, and he receives this at 335, he looks at it, and he puts it in the file. He wouldn’t know that this is not format, something is wrong. Is that fair?

(vi) PW9, Zul Azri at NOP4 (Encl. 219) pg. 105 of trial on 28.4.2022 and PW1 at NOP (Encl. 224) pg. 10 of trial on 25.4.2022 testified during cross-examination that access to the Plaintiff’s pre-printed letterheads is restricted only to a selective section of the Plaintiff’s internal officers and is recorded. The public has no access to the Plaintiff’s letterheads.

38.5 As for the Tax Position Letters (YA 2012) does not belong to En Yusof, and (YA 2013) does not belong to PW9 as they were on leave, the attendance system is of limited probative value because PW2 admitted that unlike the leave records, the attendance system may be incomplete: NOP2 (Encl. 217), pg. 54-56 so too the leave records are also of limited probative value because an officer who is on leave can nevertheless go into office to do some work: NOP3 (Encl. 218), pg. 59. As for the posit that it was not within JPPM, PW9 or En Yusof’s scope to issue the Tax Position Letters, (i) PW5 testified that JPPM does interact and meet with taxpayers, and review appeals, make the necessary amendments in respect of incorrect basis period, and handle appeal letters: NOP3, (Encl 218, pg.55 and WSPW2A, Q& A 11(6); (ii) As there is no effective internal mechanism to control or prevent the Plaintiff’s officers from overreaching or from issuing letters without authority or by mistake, evidence of what JPPM, PW9 and En Yusof were or were not supposed to do does not assist the Plaintiff’s case of falsification or forgery; (iii) the de facto officer principle prevents the Plaintiff from relying on the lack of authority of its own department or officers: Balmain Association Inc v Planning Admin Leichhardt Council (1991) 22 ALD 471 CA (NSW) at pg. 481, and Yong Tshu Khin & Anor v Dahan Cipta Sdn Bhd & Anor and other appeals [2021] 1 MLJ 478 FC at [19] and the Plaintiff is also barred by the more universal and elementary principle that no one can derive an advantage of his own wrong from relying on the lack of authority of its own department or officers: Pentadbir Tanah Daerah Petaling v Swee Lin Sdn Bhd [1999] 3 MLJ 489 CA and Stadco Sdn Bhd v Woolley Development Sdn Bhd [2013] 6 MLJ 297 CA at [22]. If indeed these officers’ signatures were forged, the police reports lodged and the Plaintiff’s conduct does not show the Plaintiff intended an investigation to be carried out. There is no way for Mahabuilders or the 2nd Defendant to know whether En Yusof or PW9’s signature on the IRB’s Letter (YA 2012) and the IRB’s Letter (YA 2013) respectively were falsified or not – as acknowledged by PW5 and PW9: NOP3 (Encl. 218), pg. 46-47 and NOP4 (Encl. 219), pg. 108. It was reemphasized that the access to the Plaintiff’s pre-printed letterheads is restricted even to its own officers, the public has no access to the Plaintiff’s letterheads and the Plaintiff had led no evidence (a) that the letterheads could be pre-printed otherwise than by the National Printer, and (b) that the Plaintiff had missing unaccounted letterheads. Findings on issue 1 [39] Section 91(1) ITA 1967 empowers the Plaintiff to raise assessment for additional tax against Mahabuilders for YA 2012 and YA 2013 for understated income so long as it is done within 5 years of the relevant year of assessment. However, s. 91(3) provides the Plaintiff may at any time make an assessment against Mahabuilders where there is fraud, negligence or wilful default on Mahabuilders’ part in connection with or in relation to tax. Section 91(1) and s. 91 (3) provides: “91 (1) The Director General, where for any year of assessment it appears to him that no or no sufficient assessment has been made on a person chargeable to tax, may in that year or within five years after its expiration make an assessment or additional assessment, as the case may be, in respect of that person in the amount or additional amount of chargeable income and tax or in the additional amount of tax in which, according to the best of the Director General’s judgment, the assessment with respect to that person ought to have been made for that year. ….

The Director General where it appears to him that —

any form of fraud or wilful default has been committed by or on behalf of any person; or

any person has been negligent, in connection with or in relation to tax, may at any time make an assessment in respect of that person for any year of assessment for the purpose of making good any loss of tax attributable to the fraud, wilful default or negligence in question.” [40] It is the Plaintiff’s case that Mahabuilders has failed to report the actual chargeable income or tax payable and has understated the chargeable income or tax payable for YA 2012 and 2013. The 2nd to 5th Defendants deny there is understatement of chargeable income or tax payable on Mahabuilder’s part, they have submitted the relevant tax forms which were received by the Plaintiff and paid what they were notified to do. To be entitled to the declaration, as 5 years has passed since YA 2012 and YA 2013, the Plaintiff will have to show it comes within section 91(3) to have authority to raise any assessment and therefore an interested person under section 535 CA 2016. [41] To answer the 1st issue whether the 2nd to 5th Defendants are entitled to rely on the Disputed Letters, it is appropriate that I set out section 146 ITA 1967, which provides as follows: “Authentication of notices and other documents

(1) Subject to subsection (2), every notice or other document issued, served or given for the purposes of this Act by the Director General or an authorized officer shall be sufficiently authenticated if the name and office of the Director General is printed, stamped or otherwise written thereon.

Where this Act provides for a notice, certificate or other document to be under the hand of any officer, the notice, certificate or document shall be signed in manuscript by that officer.

A notice, certificate or other document issued, made, served or given for the purposes of this Act and purporting to be signed in manuscript by the Director General or an authorized officer shall be presumed, until the contrary is proved, to have been so signed.” [42] In considering and evaluating the evidence of the opposing sides, it cannot be gainsaid that direct evidence prevails over hearsay evidence which has no probative value. In this regard, I agree with the submissions of the 2nd to 5th Defendants, adopted their arguments in these grounds, but have not produced them ad nauseum to avoid a lengthy judgment. I have also taken into consideration:

42.1 that DW1 had testified that he had received the Tax Clearance Letter and the Tax Position Letter via ordinary post. He had called the number on the Plaintiff’s letterhead and spoken to Zainuddin bin Jalaluddin to seek confirmation on the Tax Clearance Letter. He made a handwritten note (at page 22 of CBD 5). This note was seized by PW10 during a surprise visit to DW1’s premise when DW1 was not around. I accept the Defendants’ submission that there is no way DW1 could have prepared the note as an afterthought in anticipation of PW10’s surprise visit.

42.2 The documentary evidence before the Court clearly proves that the Plaintiff does not have a standard format when it comes to issuing letters or documents with the Plaintiff’s letterhead as the letterheads in the Common Bundle of Documents are different from one another (see para 38.4 (i) above). Thus it is not safe for this Court to conclude that the anomalies in the letterhead of the Disputed Letters are forged as the evidence led show anomalies could be due to the Plaintiff’s own inconsistent internal practice particularly where the Plaintiff’s officers retain significant liberties to edit the Plaintiff’s letterheads; mistakes by the Plaintiff’s officers, machine error, software error, printing error, or even forgery by the Plaintiff’s own officers or forgery by other parties, for whatever reason. Significantly, PW1 himself had admitted that it was impossible to monitor the actions of all the officers the Plaintiff. Under such circumstances, there was no reason for the 2nd to 5th Defendants to doubt the authenticity of the Disputed Letters when they received the same. This is fortified by the fact that the general public would not know the various department and the names of the officers in Plaintiff’s office. The public, and in this case, the 2nd to 5th Defendants are entitled to rely on the de facto officer rule and section 146 ITA 1967 as postulated by the 2nd to 5th Defendants;

42.3 Based on the entirety of evidence in this case, the fact that the Tax Clearance Letter and the Tax Position Letter, both dated 5.4.2016 had the Plaintiff’s letterhead, is sufficient for a member of the public to believe that the Plaintiff had indeed issued those letters. This is because:

Firstly, there is no evidence adduced by the Plaintiff that the Plaintiff’s letterheads (logo) could be printed other than by the National Printer; or that the Plaintiff had a number of missing or unaccounted for letterheads; or that the 2nd to 5th Defendants had access to the Plaintiff’s letterhead;

(ii) Second, falsifying or forging is a serious matter but:

the evidence given by PW1 shows the Plaintiff did not even conduct its own investigations to ascertain whether the Disputed Letters were falsified or forged; when it was suggested to PW1 that if an officer from his branch took the letterhead and issued letters, PW1 merely testified it is beyond his control. PW1 also confirmed during cross examination that no internal report was ever made by the 3 units to him pertaining to the Disputed letters (Page 15 of the NOP (Encl.224) of Trial on

25.04.2022). PW11 could not produce the investigation diary (Page 64 of the NOP5 (Encl.220) of Trial on 29.06.2022) and was unsure of which of the database (STS database, DMS database, RMS database) was checked (Page 74 of the NOP5 (Encl.220) of Trial on 29.06.2022). Neither did PW11 check with Cheras branch regarding any communication with Mahabuilders (Page 77 of the NOP5 (Encl.220) of Trial on 29.06.2022). Without a proper internal investigation being conducted, with respect, the Plaintiff is in no position to state that the letters were not issued by the Plaintiff;

The contents of the 2 police reports dated 17.04.2018 and 28.06.2018 at pg. 269 and 270 CBD 2 lodged by PW1 and PW11 respectively suggested that these reports were merely made to deny the said alleged documents. PW11 in fact disclosed under cross-examination that the police made clear on the day of the report itself that no criminal investigation would be conducted. There is also no evidence that the Plaintiff did seek the police to carry out an investigation. In fact, the police report at pg. 270 said the intention of the report is to be used by the Plaintiff’s legal department. Therefore, there is absolutely no surprise that the police took no action and this fact was confirmed by PW1: Pages 17-18 of the NOP2 (Encl.217) for Trial fixed on 26.04.2022 You confirm that the police took no action? MAHAT: Ya, Tuan.” …. Page 34 of the NOP (Encl.221) for Trial fixed on30.06.2022 “SKP: Dan berdasarkan keterangan Tuan, no further action terhadap laporan ini, betul?

42.4 The burden is on the Plaintiff to prove that the 2nd to 5th Defendants have committed fraud since it is the Plaintiff’s allegation that the Disputed IRB’s Letters were forged. As stated, earlier sections 101 and 103 of the Evidence Act 1950) and the principle in Letchumanan Chettiar made this clear that the evidential burden to adduce some evidence in rebuttal only shifts to the 2nd to 5th Defendants after the Plaintiff had adduced evidence of forgery. On the evidence produced by the Plaintiff, I agree with 2nd to 5th Defendants and find that the Plaintiff has not discharged the burden of proof on a balance of probabilities based on the entire evidence before the court.

42.5 I find it was not pleaded nor proved that Mahabuilders or the 2nd to 5th Defendants were responsible for alleged falsification or forgery or fraud on Mahabuilders’ part or knowingly relied on such forgery or fraud. In this regard, the 2nd Defendant drew attention of this court to (i) Re Soiram Ltd and another company; Georgallides v Secretary of State for Business, Energy and Industrial Strategy [2020] EWHC 768 (Ch); [2021] 1 BCLC 177,where the Court dismissed an application to set aside a judgment on the grounds of fraud because the applicant failed to show that it was the respondent who was responsible for the fraud or had knowingly relied on fraudulent evidence; (ii) Specifically in the context of impeaching a dissolution of a company, the Court will only allow going behind a dissolution in the case of absolute fraud, fraud which the company could be fixed - London and Caledonian Marine Insurance Co, Re (1879) 11 Ch D 140 at pg. 144.

42.6 There is also no suggestion that Mahabuilder and/or the 2nd to 5th Defendants were involved in the falsification and forgery or fraud, neither was falsification and forgery or fraud, put to any of the 2nd to 5th Defendant’s witnesses.

42.7 As forgery is a serious crime, it is inherently probable that the Plaintiff was not keen on initiating criminal investigations; the reluctance is also evident from no police reports being made on the Plaintiff’s acknowledgment chops on the Cover Letters, the Original Higher Return (YA 2013), the Liquidator’s Request Letter and the Liquidator’s Final Letter where there was a lot of beating of drums, but yet eventually conceded to be genuine.

42.8 Even If I am wrong that falsification and forgery or fraud is proven, this court as well as the parties are handcuffed by the pleadings which do not specify the acts by Mahabuidlers or the 2nd to Defendants which amount in law to fraud. It is established law that parties are confined to their pleadings and courts are to decide on issues raised in them. The confinement of issues within the four corners of the pleadings, amongst others, help the court identify and adjudicate in an orderly fashion the matter before it, prevent surprises, and to inform parties in advance of the case they have to meet and thereafter deal with them accordingly. See the latest case on this subject, in Iftikar Ahmed Khan (as the executor of the estate for Sardar Mohd Roshan Khan, deceased) v Perwira Affin Bank Bhd (previously known as Perwira Habib Bank Malaysia Bhd) [2018] 2 MLJ 292, where the Federal Court held: “[27] It is settled law that parties are bound by their pleadings and are not allowed to adduce facts and issues which they have not pleaded: Samuel Naik Siang Ting v Public Bank Bhd [2015] 6 MLJ 1, State Government of Perak v Muniandy [1986] 1 MLJ 490, Veronica Lee Ha Ling & Ors v Maxisegar Sdn Bhd [2011] 2 MLJ 141; [2009] 6 CLJ 232. In Lee Ah Chor v Southern Bank Bhd [1991] 1 MLJ 428; [1991] 1 CLJ Rep 239 it was held that where a vital issue was not raised in the pleadings, it could not be allowed to be granted and to succeed on appeal. A decision based on an issue which was not raised by the parties in their pleadings is liable to be set aside: Yew Wan Leong v Lai Kok Chye [1990] 2 MLJ 152. In the Chartered Bank v Yong Chan [1974] 1 MLJ 157 the Federal Court set aside the judgment of the trial judge as it was decided on an issue not raised on the pleadings. In that case the trial judge erred in concluding that the pleadings included a claim for breach of contract as well as a claim for libel.”

42.9 Specifically, the Federal Court in the case of Instantcolor System Sdn Bhd v Inkmaker Asia Pacific Sdn Bhd [2017] 2 MLJ 697 had held that: "[60] It is a cardinal rule that parties are bound by their pleadings and are not allowed to adduce facts and submissions on matters which they had not pleaded. Cases must be decided on the issues on the record; and if it is desired to raise other issues they must be placed on the record by amendment (see: State Government of Perak v Muniandy [1986] 1 MLJ 490; Anuar bin Mat Amin v Abdullah bin Mohd Zain [1989] 3 MLJ 313; and Blay v Pollard and Morris [1930] 1 KB 628)." [43] I would thus answer issue 1 in the affirmative. In so doing, I have also taken into account that:

43.1 the 2nd to 5th Defendants had established through their witnesses that they held an honest belief in the genuineness of the Disputed Letters, and it bears repetition that the Plaintiff’s own witnesses have testified that members of the public would not know the Plaintiff’s internal processes nor have access to its letterheads;

43.2 Mahabuilders’ winding up and Final Meeting were not made clandestinely - that the winding up notice and Final Meeting were both advertised in the Malay Mail were undisputed by the Plaintiff. At any rate, it was pointed out and I accept that there is no statutory requirement to request the Plaintiff for a clearance letter or to update the Plaintiff about Mahabuilders’ Final Meeting (WSDW1, Q&A 11 and 18) and as such, there is no reason to create documents leading to the Tax Clearance Letter and the Tax Position Letter. DW1 testified that he had personally delivered the Liquidator’s Request Letter, and confirmed that he had issued the Liquidator’s Final Letter: WSDW1, Q&A 11 a & 11b and Q&A 18. It begs the question whether an honest and intelligent man in the position of DW1 has any motive to lie on this and in the process risk his professional career just for some professional fees: WSDW1, Q&A 1 and 5a.

43.3 I have not ignored that the Plaintiff had complained that DW1 is not credible by relying on an inconsistency of DW1’s testimony in respect of a letter from the Plaintiff’s Cheras branch to Mahabuilders as to why DW1 submitted to the Cheras branch the Tax Clearance Letter and the Final Letter. As “evidence” is not confined to documents and the Court is enjoined by section 3 of the Evidence Act to consider oral statements by witnesses, the evaluation and assessment of the credibility (or otherwise), of the witnesses were crucial to the present case. This Court has to consider the following factors as expounded by various authorities:  The inherent probability or improbability of representations of fact;  The presence of independent evidence tending to corroborate or undermine any given statement of fact;  The presence of contemporaneous records;  The demeanour of witnesses;  The frailty of the population at large in accurately recollecting and describing events in the distant past;  Whether the witness takes refuge in wild speculation or uncorroborated allegations of fabrication;  Whether the witness had a motive for misleading the court; and  Weigh up one witness against another

43.4 However, having sieved through DW1’s evidence, I do not find him unreliable, if there was a discrepancy in his evidence, it was minor, and concern an event 6 years ago. Whilst the Plaintiff had complained as to why the Tax Clearance Letter and the Final Letter were submitted to the Cheras branch, yet the evidence shows prior this, the tax return forms for Tas 2012 and 2013 were submitted to the Cheras branch and acknowledged received.

43.5 In assessing the facts in issue on the basis of their “inherent probability or improbability” I am guided by the Federal Court in Md Zainudin Bin Raujan v Public Prosecutor [2013] 3 MLJ 773: “[33] It is trite that the inherent probability or improbability of a fact in issue must be the prime consideration in deciding whether a witness is credible or not. It is the duty of the court to sieve the evidence and to ascertain what are the parts of the evidence tending to incriminate the accused which he accepted. In Public Prosecutor v Dato' Seri Anwar bin Ibrahim (No 3) [1999] 2 MLJ 1 at p 79 Augustine Paul J (as he then was) summed up the tests for determining the credibility of a witness as follows: The Privy Council has stated that the real tests for either accepting or rejecting the evidence of a witness are how consistent the story is with itself, how it stands the test of cross-examination, and how far it fits in with the rest of the evidence and the circumstances of the case (see Bhojraj v Sitaram 1936 AIR PC 60). …It must, however, be observed that being unshaken in cross-examination is not per se an all-sufficient acid test of credibility. The inherent probability or improbability of a fact in issue must be the prime consideration (see Muniandy & Ors v Public Prosecutor [1966] 1 MLJ 257). It has been held that if a witness demonstrably tells lies, his evidence must be looked upon with suspicion and treated with caution, but to say that it should be entirely rejected would be to go too far (see Khoon Chye Hin v Public Prosecutor [1961] MLJ 105). It has also been held that discrepancies and contradictions there will always be in a case. In considering them, what the court has to decide is whether they are of such a nature as to discredit the witness entirely and render the whole of his evidence worthless and untrustworthy (see De Silva v Public Prosecutor [1964] MLJ 81). The Indian Supreme Court has pointed out that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggerations, embroideries or embellishments (see Ugar v State of Bihar 1965 AIR SC 277). It is useful to refer to Public Prosecutor v Datuk Haji Harun bin Haji Idris (No 2) [1977] 1 MLJ 15 where Raja Azlan Shah FJ (as His Highness then was) said at p 19: In my opinion, discrepancies there will always be, because in the circumstances in which the events happened, every witness does not remember the same thing and he does not remember accurately every single thing that happened … The question is whether the existence of certain discrepancies is sufficient to destroy their credibility. There is no rule of law that the testimony of a witness must either be believed in its entirety or not at all. A court is fully competent, for good and cogent reasons, to accept one part of the testimony of a witness and to reject the other. In the absence of any contradiction, however, and in the absence of any element of inherent improbability, the evidence of any witness, whether a police witness or not, who gives evidence on affirmation, should normally be accepted (see Public Prosecutor v Mohamed Ali [1962] MLJ 257).”

43.6 I find on the whole, that the 2nd to 5th Defendants’ witnesses were credible witnesses. In my respectful opinion, the evidence of the Plaintiff’s own witnesses when analysed and weighed up, show that the Plaintiff did not on a balance of probabilities prove the alleged falsification or forgery of the Disputed Letters. Conversely, based on evidence at trial particularly DW2 and DW6, and the contemporaneous documents before the Court, the Disputed Letters from the Plaintiff to Mahabuilders or the 2nd Defendant were received by Mahabuilders or the 2nd Defendant as the case may be, by ordinary post.

43.7 It bears mention that Tax return forms when submitted to the Plaintiff goes through a series of process before the particulars of the tax return form is uploaded to the Plaintiff’s system. The Plaintiff’s internal process is not known or made to the general public. PW5 had testified as follows: Pages 52-53 of the NOP3 (Encl.218) for Trial fixed on 27.04.2022 So, data entry is separate? So, in this form at page 312, you have first data scanned, the form is scanned. Then verified, which is DCS. Then, it’s uploaded in the system? In the same form? Yes. Pn Nurul is not involved in any of these? ZABIDAH: Tak. Yes. Because she verifies the data? ZABIDAH: Yes, only data. Pn Zabidah, all these are internal processes of IRB, which public don’t know? Yes? You confirm that? Yes. In the event an employee makes a mistake in IRB, public wouldn’t know. If somebody makes a mistake, do it wrong, misconduct, don’t do a proper job. Public wouldn’t know. Is that fair?

43.8 Crucially, the Plaintiff’s system can only be accessed by the Plaintiff’s officers. As such, the general public would not have any control of the particulars uploaded in the system. Whether in law/fact this Court should grant the orders and declarations sought by the Plaintiff [44] As Issue 1 is answered in the affirmative, it follows that the answer is a no. [45] The Plaintiff has not shown it comes within section 91(3) ITA 1967 to be an interested person. [46] Even if, assuming the Plaintiffs’ complaint is made out, this court’s power to grant the declaration and relief sought is discretionary and will not be exercised automatically in every case. As with all discretion, it is to be exercised judiciously and only when it is just to do so. In considering whether the discretion should be exercised, the court must undertake an evaluation of relevant factors such as impact and effect on the 2nd to 5th Defendants and can consider prejudice to be suffered by the 2nd to 5th Defendants. This discretion is clear from the use of the permissive word "may" in section 535 CA 2016. This leads me to the next issue. Whether there is any prejudice to the Defendants should the Plaintiff’s claim be allowed? [47] In the exercise of discretion, I have thus considered and find that Mahabuilders and its former officers would suffer prejudice if Mahabuilders’ dissolution is declared void now particularly as it is not disputed that the winding up notice and Final Meeting were in fact advertised. Once advertised, the public including the Plaintiff is deemed to know of the dissolution. [48] I accept the 2nd to 5th Defendants’ argument that the Plaintiff was negligent or at fault in omitting to follow winding up advertisements – defeating the whole purpose behind the law requiring winding up to be advertised. Had the Plaintiff not been negligent or at fault:

48.1 The 2nd Defendant could have been alerted, and could have stayed his hands in winding up and liquidating Mahabuilders, and in distributing Mahabuilders’ assets;

48.2 Mahabuilders and its former directors could have taken steps to preserve evidence: NOP9(Enc. 226), pg.49-50.

48.3 Mahabuilders would have the means to raise funds to satisfy any outstanding tax liabilities: NOP9(Enc 226), pg. 49-52. [49] If Mahabuilders is revived now, it will be without financial resources to satisfy any tax liabilities, and Mahabuilders and the 2nd to 5th Defendants will be without access to records to defend any tax assessments, effectively rendering the 3rd to 5th Defendants as former directors liable under section 75 ITA 1967, thereby prejudicing them. Whether the Court has the jurisdiction under section 535 of the Companies Act 2016 to void / reverse Mahabuilders’ dissolution more than 2 years ago [50] The company, Mahabuilders was duly dissolved on 28.08.2016 and therefore the two years period shall commence from 28.08.2016 until 27.08.2018. [51] It is not disputed that the Plaintiff’s application was filed on 17.05.2018, which is within the two (2) years period. [52] The Plaintiff contends that the interpretation of the “two years” prescribed in Section 535 (1) CA 2016 refer to the period between the dissolution of the company and the date when the application under section 535(1), citing in support, Carlson White (M) Sdn Bhd v Mutiara Metropolis Sdn Bhd [1999] 3 CLJ 395; Mohd Bakri @ Bakhari bin Mohd Noor v. Ketua Pengarah Insolvensi [2016] 7 MLJ 124 and Re Scad Ltd [1941] 2 All ER 266; Re Belmont & Co Ltd [1952] 2 Ch 10; Re Burgee Investments Ltd Commisioner of Inland Revenue v Registrar of Companies [1994] 2 NZLR 183 (which followed Re Scad Ltd ); Commissioner of Inland Revenue v. Registrar of Companies (1993) 7 PRNZ 224; Commonwealth of Australia v O’Reilly & Ors [1984] 9 ACLR 172 which followed Re Scad; Re Mass Success Development Ltd [1999] 3 HKC 136; Re Hanluck Investments Ltd [2018] 6 HKC 374. [53] Senior Federal Counsel also argued that this Court ought to adopt a purposive approach to the interpretation of section 535(1) in accordance with section 17A of the Interpretation Acts 1948 and 1967 which provides that in construing the meaning of provisions in statute a construction which would promote the purpose or object underlying the Act shall be preferred to a construction that would not promote that purpose or object. [54] It was also posited on behalf of the Plaintiff that to construe the “two years” as the limitation period for the Court to make the declaration will lead to absurdity, as anyone who simply applies for an adjournment will frustrate the application and further the Plaintiff is not in the position to control the Court proceedings. [55] The 2nd to 5th Defendants on the other hand contended that section 535 CA 2016 is clear, that a declaration to void a dissolution can only be made within 2 years post-dissolution. They asserted that it is trite law that where the language of a provision is clear, the letters of the provision ought to be interpreted plainly and literally and be given effect: Chin Choy & Ors v Collector of Stamp Duties [1979] 1 MLJ 69 FC, Andrew Lee Siew Ling v United Overseas Bank (M) Bhd [2013] 1 MLJ 449 FC; Tenaga Nasional Berhad v Pearl Island Resort Development Sdn Bhd [2017] 9 CLJ 185; Asia Pacific Higher Learning Sdn Bhd v Majlis Perubatan Malaysia & Anor [2020] 2 MLJ 1; Merck KGaA v Leno Marketing (M) Sdn Bhd (Registrar of Trade Marks, interested party) [2018] 5 MLJ 1. [56] In attempting to construe section 535 CA 2016, besides the cases cited by the parties, I would also refer to the following recent decisions of the Federal Court for guidance:

Tebin bin Mostapa (as administrator of the estate of Hj Mostapa bin Asan, deceased) v Hulba-Danyal bin Balia & Anor (as joint administrators of the estate of Balia bin Munir, deceased) [2020] 4 MLJ 721; [2020] 7 CLJ 561: “[30] In our opinion, the rules governing statutory interpretation may be summarised as follows. First, in construing a statute effect must be given to the object and intent of the Legislature in enacting the statute. Accordingly, the duty of the court is limited to interpreting the words used by the legislature and to give effect to the words used by it. The court will not read words into a statute unless clear reason for it is to be found in the statute itself. Therefore, in construing any statute, the court will look at the words in the statute and apply the plain and ordinary meaning of the words in the statute. Second, if, however the words employed are not clear, then the court may adopt the purposive approach in construing the meaning of the words used. Section 17A of the Interpretation Acts 1948 and 1967 provides for a purposive approach in the interpretation of statutes. Therefore, where the words of a statute are unambiguous, plain and clear, they must be given their natural ordinary meaning. It is not the province of the court to add or subtract any word; the duty of the court is limited to interpreting the words used by the legislature and it has no power to fill in the gaps disclosed. Even if the words in a statute may be ambiguous, the power and duty of the court ‘to travel outside them on a voyage of discovery are strictly limited’. Third, the relevant provisions of an enactment must be read in accordance with the legislative purpose and applies especially where the literal meaning is clear and reflects the purposes of the enactment. This is done by reference to the words used in the provision; where it becomes necessary to consider every word in each section and give its widest significance. An interpretation which would advance the object and purpose of the enactment must be the prime consideration of the court, so as to give full meaning and effect of it in the achievement to the declared objective. As such, in taking a purposive approach, the court is prepared to look at much extraneous materials that bears on the background against which the legislation was enacted. It follows that a statute has to be read in the correct context and that as such, the court is permitted to read additional words into a statutory provision where clear reason for doing so are to be found in the statute itself.” (emphasis added)

(ii) PJD Regency Sdn Bhd v Tribunal Tuntutan Pembeli Rumah & Anor and other appeals [2021] 2 MLJ 60, as follows: “[36] … statutory interpretation usually begins with the literal rule. However, and without being too prescriptive, where the provision under construction is ambiguous, the courts will determine the meaning of the provision by resorting to other methods of construction foremost of which is the purposive rule (see the judgment of this court in All Malayan Estates Staff Union v Rajasegaran & Ors [2006] 6 MLJ 97).” (emphasis added) [57] As for the application of section 17A of the Interpretation Acts 1948 and 1967, its scope was explained by Augustine Paul FCJ in the case of All Malayan Estates Staff Union v Rajasegaran & Ors [2006] 6 MLJ 97; [2006] 5 AMR 585; [2006] 4 CLJ 195: “[12] The choice prescribed in s 17A ‘… a construction that would promote the purpose or object underlying the Act … shall be preferred to a construction that would not promote that purpose or object …’ can only arise when the meaning of a statutory provision is not plain and is ambiguous. If, therefore, the language of a provision is plain and unambiguous s 17A will have no application as the question of another meaning will not arise. Thus, it is only when a provision is capable of bearing two or more different meanings can s 17A be resorted to in order to determine the one that will promote the purpose or object of the provision. Such an exercise must be undertaken without doing any violence to the plain meaning of the provision. This is a legislative recognition of the purposive approach and is in line with the current trend in statutory interpretation.” [58] The Federal court implicitly in PJD Regency and again in Yong Tshu Khin & Anor v Dahan Cipta Sdn Bhd & Anor and other appeals [2021] 1 MLJ 478, affirmed the scope of s. 17A as explained by Augustine Paul FCJ. [59] Section 535(1) CA 2016 reads: “Where a company has been dissolved, the Court may, AT ANY TIME WITHIN TWO YEARS AFTER THE DATE OF THE DISSOLUTION, on an application of the liquidator of the company or of any other person who appears to the Court to be interested, make an order upon such terms as the Court thinks fit declaring the dissolution to have been void, and such proceedings may be taken as might have been taken if the company had not been dissolved.” (Emphasis added) [60] I find that the words that section 535 employed, are plain and very clear. I am of the utmost respectful view that a “declaration” as opposed to “application” to void a dissolution can only be made within 2 years post-dissolution. A literal meaning given to the words do not admit or give rise to two possible interpretations. Put another way, the 2 years in section 535 clearly refers to the time limitation for the Court to make a declaration – that the order declaring the dissolution void must be made within two years of the date of the dissolution i.e. by 20.8.2018 since the date of dissolution was 20.8.2016. [61] The words “may, AT ANY TIME WITHIN TWO YEARS AFTER THE DATE OF THE DISSOLUTION” in my view are not surplusage or to be treated as mere tautology as Parliament must have intended these words to be put there for a purpose. [62] I respectfully do not agree that the purposive approach should be used when the section is worded in clear language, free from any ambiguity and stand guided by the authorities which make it trite that where the words in a statute are ambiguous and capable of two meanings, then only the court may resort to other methods of construction like the purposive rule, or invoke the aid of Hansard and explanatory statements for the history of the legislation. There is however no ambiguity here. [63] In this regard, I have not overlooked that Senior Federal Counsel has postulated that section 535(1) CA 2016 must be interpreted using the purposive approach by making reference to:

The Companies Bill 2015 where the ultimate purpose of the enactment Companies Act 2016 is as “an Act to provide for the registration, administration and dissolution of companies and corporations and to provide for related matters.”

(ii) The Explanatory Statement of the Companies Bill 2015 which states: “Clause 535 deals with the power of Court to declare the dissolution of a company void on application of the liquidator of the company or of any other person who appears to the Court to be interested within two years from the date of dissolution.” [64] In my judgment, even if section 535 CA is construed in the light of its purpose, and the Explanatory Statement, I would still come to the same conclusion as the literal interpretation. [65] For reasons stated above, I am unable to agree with Senior Federal Counsel that the time of “two years” in section 535 only refers to the bringing of an application. I would thus answer this issue in the negative. [66] As for invoking the court’s inherent powers under Order 92 Rule of Court 2012 and/or paragraph 8 schedule 2 of the Court’s of Judicature Act 1964 and/or Section 582 of CA 2016 to abridge the time, with respect, I do not think the court’s inherent powers can be invoked under these provisions to abridge the time. In coming to a conclusion that there is no power to extend time, I have compared section 535 with other provisions in the CA 2016. For example, section 143 CA 2016 has express provisions giving a discretion to the registrar to extend time for the giving of notice on substantial shareholdings in a company. So too section 361 CA 2016 which gives the court power to extend time for the registration of charges if satisfied the omission was accidental or due to inadvertence or some other cause or if just and equitable to do so. [67] Section 45 of the Interpretation Acts 1948 and 1967 empowers the court to extend time even upon expiry of the time period stipulated IF power is given to the court to extend time in the written law itself. It stipulates: “45. Where in any written law a time is prescribed for doing any act or taking any proceeding and power is given to a court or other authority to extend that time, the power may be exercised by the court or authority although the application for its exercise is not made until after the expiration of the time prescribed.” [68] I am also in accord with Wong Chee Lin J’s views expressed earlier in this case in Ketua Pengarah Hasil Dalam Negeri v Suruhanjaya Syarikat Malaysia & Anor [2019] 12 MLJ 509 where Her Ladyship did a survey of the same section in other jurisdictions and held: “[17] However, the question is whether the court has the power to grant an extension of the two year period. It is not stated in s 535 or anywhere else in the CA 2016 that the two year period may be extended by the Court. [18] Section 45 of the Interpretation Acts 1948 and 1967 stipulates that the court has the power to extend time even upon expiry of the time period stipulated if power is given to the court to extend time in the written law itself. Section 45 provides that: Where in any written law a time is prescribed for doing any act or taking any proceedings and power is given to a court or other authority to extend that time, the power may be exercised by the court or authority although the application for its exercise is not made until after the expiration of the time prescribed. [19] There is no such power given in the present case and so I am of the view that I have no discretion to extend the two year period stated in s 535(1) of the CA 2016 for the making of the order declaring the dissolution void. [20] Other jurisdictions such as Hong Kong and the United Kingdom had the same provision as s 535(1) of the CA 2016 but they had all subsequently amended their provisions. [21] It is to be noted that in repealing CA 1965 and enacting CA 2016, Parliament could have amended or removed the two year time period in s 535(1) of the CA 2016 should it have intended to do so. However, unlike jurisdictions such as Hong Kong and the United Kingdom, Parliament has merely adopted the wording of s 307 of the CA 1965 in its entirety. [22] The lack of any amendment to the wording of s 307 of the CA 1965 through s 535(1) of the CA 2016 despite the other changes made when CA 2016 was enacted can be seen as a clear indication that Parliament did not intend to extend the two year period from the date of dissolution within which an order for the declaration of voidness could be made by the courts. [23] In Hong Kong, s 290 of the Companies (Winding Up and Miscellaneous Provisions) Ordinance (Cap 32) (‘the Cap 32 Hong Kong’) i.e., the provision which allows the courts to declare the dissolution of a company to have been void was amended in 1997 to allow for applications for extension of the two-year period to be made: 290 Power of court to declare dissolution of company void

Subject to subsection (1A), in the case of a company which has been dissolved under section 226A, 227, 239 or 248, the court may at any time within 2 years of the date of the dissolution, on an application being made for the purpose by the liquidator of the company or by any other person who appears to the court to be interested, make an order, upon such terms as the court thinks fit, declaring the dissolution to have been void, and thereupon such proceedings may be taken as might have been taken if the company had not been dissolved. (Amended 75 of 1993 s 17)

The liquidator of the company or any other person who appears to the court to be interested may at any time apply to extend the period of 2 years referred to in subsection (1) and the court may so extend, on such terms and conditions as seem to it just and expedient, if it is satisfied that there are exceptional circumstances justifying the extension. (Added 75 of 1993 s 17). [24] Subsequently, when Cap 32 Hong Kong as repealed and replaced by the new Companies Ordinance (‘the Cap 622 Hong Kong’), s 765 of the Cap 622 Hong Kong was amended to:

amend the two year period to 20 years; and

expressly stipulate the applicability of the time period to the date on which the application to restore was made, rather than the date on which the order to restore was given. 765 Application to Court for restoration

An application to the Court for the restoration of the company to the Companies Register may be made –

by a person who was a director or member or creditor of the company; or

by any other person, including the Government, who appears to the Court to have an interest in the matter. 766 When application must be made

Subject to subsections (2) and (4)

an application under section 765(1) must be made within 20 years after the date on which the notice was published in the Gazette under section 291(6), or on which the order was made under section 291A (1), of the predecessor Ordinance; b) an application under section 765(2) must be made within 20 years of the deregistration; and c) an application under section 765(4) must be made within 20 years after the date of the dissolution. [25] In the United Kingdom, prior to the enactment of the Companies Act 2006 (‘the UK CA 2006’), the provisions which are in pari material to s 535 of the CA 2016 contained exactly the same wording as s 535 of the CA 2016:

s 223 of the Companies (Consolidation) Act 1908;

s 352 of the Companies Act 1948; and

s 651 of the Companies Act 1985. [26] However, amongst others, in enacting the UK CA 2006 has altered the previous position by:

removing the stipulation of the two-year time period within which an order for restoration should be made in s 1031 of the UK CA 2006; and

expressly stipulated the time period by which applications to restore should be made under particular circumstances in s 1030 of the UK CA 2006.” [69] In fact, Senior Federal Counsel concedes in paragraph 196, encl.240 of her submission that there is no specific provision in the Companies Act 2016 that gives the Court power to abridge the time stipulated section 535(1) CA 2016. [70] Finally, also bearing on the question of jurisdiction to make the declaration, I am not satisfied that the Plaintiff has standing and fell within the concept of a ‘person who appears to the Court to be interested’ as described under section 535(1) CA 2016. This is because 5 years have passed since YA 2012 and YA 2013. Thus, section 91 of ITA does not give the Plaintiff power to raise an assessment, unless it proves fraud, negligence or wilful default on Mahabuilders’ part. [71] To show standing, the phrase ‘any other person who appears to the Court to be interested’ has not received consideration in local case laws. I as such, took guidance from Re Wood and Martin (Bricklaying Contractors) Ltd [1971] 1 WLR 293 at 297 where Megarry J (as he then was) construed s 352(1) of the Companies Act 1948, which is in pari materia to section 535

of our CA 2016, to mean that applicants must demonstrate an “interest of a proprietary or pecuniary nature in resuscitating the company”. [72] At risk of repetition, in this case, the Plaintiff has not demonstrated sufficient interest of a pecuniary nature as it failed to prove fraud to be in a position to raise additional assessments to come within the words ‘appears to the Court to be interested’. [73] Even if I am wrong on the construction of section 535 (1), the very wording of the section confers a discretion on the court by the use of the word “may”. As to why discretion will not be exercised was set out in an earlier part of this judgment – that prejudice will be occasioned to the 2nd to 5th Defendants. [74] For reasons given, the Plaintiff’s action was dismissed with no order as to costs. No costs was ordered as the action was filed by the Plaintiff in an attempt to exercise its statutory duty. Dated: 28th May 2023 - sgd - ……………………….. Liza Chan Sow Keng Judge High Court of Malaya at Kuala Lumpur COUNSEL: For the Plaintiff : Liz Elyna (together with her, Irfan Muashik Norhidayah and Muhamad Danial) Lembaga Hasil Dalam Negeri (LHDN), Cyberjaya For the 1st Defendant : Fadilah Abdul Wahab Suruhanjaya Syarikat Malaysia (SSM) Kuala Lumpur For the 2nd Defendant : Datuk DP Naban (together with him, Hayden Tan, Ng Kar Ngai and Lim Chinn Wei (PDK)) Messrs Rosli Dahlan Saravana Partnership For the 3rd – 5th Defendants : P Satiesh (together with him, N G Vinod) Messrs Law Chambers of Vin Sa & Ian CASES REFERRED: Letchumanan Chettiar Alagappan @ L Allagappan (as executor to SL Alameloo Achi alias Sona Lena Alamelo Acho, deceased) & Anor v Secure Plantation Sdn Bhd [2017] 4 MLJ 697; [2017] 5 CLJ 418 Dr Shanmuganathan v Periasamy s/o Sithambaram Pillai [1997] 3 MLJ 61 Sinnaiyah & Sons Sdn Bhd v Damai Setia Sdn Bhd [2015] 5 MLJ 1 Re Soiram Ltd and another company; Georgallides v Secretary of State for Business, Energy and Industrial Strategy [2020] EWHC 768 (Ch); [2021] 1 BCLC 177 Iftikar Ahmed Khan (as the executor of the estate for Sardar Mohd Roshan Khan, deceased) v Perwira Affin Bank Bhd (previously known as Perwira Habib Bank Malaysia Bhd) [2018] 2 MLJ 292 Instantcolor System Sdn Bhd v Inkmaker Asia Pacific Sdn Bhd [2017] 2 MLJ 697 Chin Choy & Ors v Collector of Stamp Duties [1979] 1 MLJ 69 Andrew Lee Siew Ling v United Overseas Bank (M) Bhd [2013] 1 MLJ 449 Tenaga Nasional Berhad v Pearl Island Resort Development Sdn Bhd [2017] 9 CLJ 185 Asia Pacific Higher Learning Sdn Bhd v Majlis Perubatan Malaysia & Anor [2020] 2 MLJ 1 Merck KGaA v Leno Marketing (M) Sdn Bhd (Registrar of Trade Marks, interested party) [2018] 5 MLJ 1 Tebin bin Mostapa (as administrator of the estate of Hj Mostapa bin Asan, deceased) v Hulba-Danyal bin Balia & Anor (as joint administrators of the estate of Balia bin Munir, deceased) [2020] 4 MLJ 721; [2020] 7 CLJ 561 All Malayan Estates Staff Union v Rajasegaran & Ors [2006] 6 MLJ 97; [2006] 5 AMR 585; [2006] 4 CLJ 195 Yong Tshu Khin & Anor v Dahan Cipta Sdn Bhd & Anor and other appeals [2021] 1 MLJ 478 Ketua Pengarah Hasil Dalam Negeri v Suruhanjaya Syarikat Malaysia & Anor [2019] 12 MLJ 509 Re Wood and Martin (Bricklaying Contractors) Ltd [1971] 1 WLR 293 LEGISLATION/STATUTE REFERRED: Order 14A of the Rules of Court 2012 Order 33 rules 2 of the Rules of Court 2012 Section 91(1) and Section 91(3) of the Income Tax Act 1967 Section 17A of the Interpretation Acts 1948 Section 45 Interpretation Acts 1948 and 1967 s 45